NAHEED ARA MOONIS, J. - (1.) THE instant revision has been preferred against the ex.parte judgment and order dated 23.10.2007 passed by Sri Ravindra Nath Kakkar, Principal Judge, Family Court, Kanpur Nagar in Case No. 251 of 2004 (Smt. Neelam Srivastava Versus Naveen Srivastava) whereby the application under section 125 Cr.P.C. filed by the opposite party no.2 (Smt.Neelam Srivastava) was allowed directing the revisionist to pay Rs. 2200/- per month as maintenance allowance.
(2.) AN application was moved by the opposite party no.2 that she was married with the revisionist (Naveen Srivastava) on 25.5.2002 according to Hindu customs and rites. At the time of marriage, sufficient amount of dowry was given to the revisionist costing to Rs. 5.00 Lacs by the parents of the opposite party no.2 in addition to incurring the sufficient amount in the reception etc. After lapse of some time, the opposite party no.2 came at her matrimonial house. Her husband and the family members in the in-laws house began to taunt for bringing lesser amount of dowry and also beaten her. She was also subjected to mental and physical harassment. They also kept her without food for several days. After three months of marriage they also exerted undue pressure upon the opposite party no.2 to fetch more dowry as well as Rs. 2.00 lacs. On non-fulfilment of their demand of dowry, the opposite party no.2 was physically and mentally persecuted and was ousted from the house. The opposite party no.2 lived at her parental house for about seven months and the husband of the opposite party no.2 did not take care of her. After lapse of seven months, the opposite party no.2 with her parents, brothers and other members of the parental house went at her matrimonial house and they assured to give some more dowry according to their status. On their assurance, the revisionist and her in-laws became ready to keep her. After lapse of some time, the revisionist and the in-laws again persuaded her to bring some more dowry and on non-fulfilment of that, they began to harass her.The parents of the opposite party no.2 made their best efforts to harmonise the strained relations and were ready to fulfil their demands of dowry gradually but the revisionist and his family members were harassing the opposite party no.2 to such an extent that it was very difficult to the opposite party no.2 to live in the house of in-laws and even there was imminent danger to her safety and security as they were planning to eliminate her.All the efforts of the parents of the opposite party no.2 did not bring any fruitful response and the relations between the revisionist and opposite party no.2 were being bickered and the chances of harmonisation was not possible on account of rigid attitude of the in-laws. Ultimately on 4.4.2004, the revisionist formed strong will to keep the opposite party no.2 away from his company, in such circumstances, the opposite party no.2 moved an application before the Senior Superintendent of Police Kanpur Nagar. In consequence thereof, case was registered vide Case Crime No. 113/2004 under sections 498A/323/504/506 IPC read with section Dowry Prohibition Act, Police Station Baboopurwa District Kanpur Nagar against the revisionist and the family members of the matrimonial house. On 21.4.2004, the opposite party no.2 moved an application under section 125 Cr.P.C. against the revisionist praying for grant of maintenance to the Rs. 10, 000/- per month which was registered as Case No. 251 of 2004 in the Court of Principal Judge, Family Court, Kanpur Nagar. It was stated by the opposite party no.2 that she was a house hold lady. She did not have any experience of any work outside.There is none to support her. On the other hand, the husband is owner of G.L. Furnishers and Naveen and Company Kidwai Nagar Kanpur.The revisionist has income of Rs.25000/- per month. The husband filed objection on 13.12.2004 and on account of his absence, the case was proceeded ex.parte on 7.9.2007. In support of her claim for maintenance allowance, the opposite party no.2 filed an affidavit and supported the averments of the application under section 125 Cr.P.C. The opposite party no.2 approached this Court assailing the orders dated 2.8.07 and 7.9.07. This Court directed the court below to conclude the proceedings under section 125 Cr.P.C. expeditiously. At the same time, the opposite party no.2 filed documents in support of proof of marriage which was published in the matrimonial column of the newspaper and invitation card. She had also submitted copy of the first information report which was registered against the revisionist and also a copy of the bail order whereby the revisionist was allowed to be released on bail. Learned trial court found that the opposite party no.2 is the legally wedded wife of the revisionist. Their nuptial knot was tied on 25.2.2002 in accordance with Hindu Customs and Rites with great pomp and show. It was found by the learned trial court that the marriage of the opposite party no.2 was solemnised with the revisionist on 25.2.2002 and this fact was not refuted by the revisionist. It was also found that the opposite party no. 2 (wife) had to live separately on account of torture and harassment inflicted to her by her in-laws. In this regard, information was given to the police and the first information report was registered.Sufficient proof was given by the opposite party no.2 to live separately from her husband. Though the revisionist had appeared in the Court from 2004. He absented himself which also goes to show that he wanted to linger the matter so as to cause harm and harassment to the opposite party no.2, despite the fact that there was specific direction of this Court to conclude the proceedings expeditiously. It was held by the court below that the revisionist had deliberately avoided to maintain to the opposite party no.2.There was ample reasons for the wife to live separately from her husband. In her application, the opposite party no.2 has stated that she is an unemployed household lady and is not in a position to maintain her therefore, the earlier officer of the court below had granted interim maintenance to the opposite party no.2 on 26.4.2005 as it was found that she was unable to maintain herself therefore, the court below had concluded that the opposite party no.2 was entitled to the maintenance. The husband had sufficient means of income as stated by the opposite party. The revisionist was earning Rs. 25, 000/- per month as he is the owner of the G.L. Furnishers and Naveen and Company.The revisionist is also owner of the vehicles. There is documentary proof in support of it. Matrimonial advertisement given by the husband was produced in which it was mentioned that the revisionist was having his own business, vehicles and house. At the time of granting the maintenance, the income of the revisionist was estimated to Rs. 8, 000/-therefore, on 26.4.2005, Rs. 2000/- was given as maintenance. While allowing this application ex.parte it was brought to the notice of the court below that even the interim maintenance has not been given and the order has not been complied with despite lapse of more than two years. Looking to the peculiar situation, the court below came to the conclusion directing the revisionist to pay Rs. 2200/- per month to the revisionist from the date of order, thus the application moved by the opposite party no.2 was allowed ex-parte on 23.10.07. Feeling aggrieved by the order dated 23.10.2007, the revisionist has filed the present revision. Heard learned counsel for the revisionist, learned counsel for the opposite party no.2 and the learned AGA and have also taken through the materials on record. Learned counsel appearing on behalf of the revisionist submitted that the order dated 23.10.07 passed against the revisionist ex.parte is absolutely illegal, unfair and is not tenable in the eyes of law. The learned counsel for the revisionist contended that the revisionist has been contesting the matter and after filing of the application under section 125 Cr.P.C. notices were issued to the revisionist. The revisionist appeared before the court below and filed written statement on 13.12.2004 and without considering the reply of the revisionist, the court below passed the order granting interim maintenance to the opposite party no.2 from the date of order. For compromise, several dates were fixed before the court below and the case was adjourned time and again and in the meantime revisionist has fully complied with the order paying interim maintenance to the opposite party no.2. In proof of which receipt of payment to the tune of Rs. 10, 000/- has been filed which was given to the opposite party no.2 on 23.7.2007. It is further contended by learned counsel for the revisionist that the uncle of opposite party no.2 Anil Kumar Nigam who is a practising advocate was causing hindrance in the settlement of their matrimonial dispute. In this regard, revisionist had also complained to the Administrative Judge High Court. It was also brought to the notice of the court that the opposite party no.2 was a women of shabby character.There was illicit relation between the opposite party no.2 and her uncle Anil Kumar Nigam and the opposite party no.2 wants to live with her and since very inception, the opposite party no.2 was residing with Anil Kumar Nigam 105/279 Sri Nagar Police Station Chamanganj District Kanpur Nagar while the address of her parent is 133/2 M. Kidwai Nagar Police Station Babu Purwa District Kanpur Nagar. This fact has also been admitted by Anil Kumar Nigam by an affidavit. In these circumstances, the revisionist had also tried to get the case transfer to some other Court of competent jurisdiction in other district. In this connection he had also approached this Court for getting the case transferred to another district but the opposite party no.2 concealing the material facts filed the criminal misc. application no.18139/07 and obtained the order dated 2.8.07 to get the case decided expeditiously. His transfer application was also dismissed in default in which he moved a restoration application. He was trying to get the matter decided outside the district and the opposite party no.2 taking benefit of the transfer application obtained ex.parte order on 23.10.07 whereby maintenance allowance from Rs. 2000/- per month was enhanced to Rs. 2200/- per month. The said order has been assailed by means of present revision in which after considering every aspect of the case, this Court granted interim order dated 10.12.2007 staying the operation of the order dated 23.10.07. It is further contended by him that the husband is ready and willing to discharge his marital obligations. In case this matter is sent back to the court below and opportunity of hearing be given to both the parties, then appropriate orders would be passed looking to the entire facts and circumstances of the case. By an ex.parte order, the revisionist has been deprived of his right of hearing which has culminated into grave injustice with the revisionist and the order passed by the court below being ex.facie erroneous is not tenable and is liable to be rejected. The learned counsel appearing on behalf of opposite party no.2 strongly opposed the prayer made by learned counsel for the revisionist. It is contended that the opposite party no.2 from the very inception of her marriage was, subjected to bear brunt of her husband and the members of her matrimonial house on account of non-fulfilment of their demand of dowry. The husband has sufficient means to maintain wife. The opposite party no.2 was neglected from the very beginning.She was not being given basic amenities of life and even she was kept without meal time and again at her matrimonial house. The opposite party no.2 has also imminent danger to her life and security. The court below has granted reasonable amount of maintenance. During all these years, revisionist has only paid Rs. 10, 000/- and for the payment of rest of the amount of maintenance, the revisionist has been dilating the matter which goes to show that the revisionist is only interested to harass the opposite party no.2 by languishing the matter. The revisionist has deliberately abandoned the opposite party no.2 and maintenance allowance granted by the court below has also not been paid to her which proves that any effort of compromise on his part is absolutely baseless and unfounded. It is further asserted that in order to avoid maintenance allowance, the revisionist has levelled frivolous allegations that the opposite party no.2 has illicit relation with her own uncle Anil Kumar Nigam. The father of the opposite party no.2 and Anil Kumar Nigam lives in the same house. The revisionist has taken all steps for harassing and torturing to the opposite party no.2.He is highly interested to languish the matter so as to deprive the opposite party no.2 from getting the maintenance allowance. This Hon'ble Court had also directed the court below to decide the matter expeditiously on account of which the court below was left with no option except to proceed with the case ex.parte. It was further contended that now the father of the opposite party no.2 has retired from service. She is a poor lady and has no source for survival. The revisionist is still trying to languish the matter on either pretext which will deprive the opposite party no.2 from getting the maintenance and ultimately she will be force to lead vagrant and immoral life which is a curse for the society. The husband has been harassing her from the very inception and has not given maintenance despite the order granted by the court below which shows that the term between husband and the wife has become highly strained which cannot be harmonised by remitting back the matter to the court below. The legal obligation is cast upon the husband to maintain his wife till she remarries or she is indulged in adultery, or if without any sufficient cause, she refuses to live with her husband or if they are living separately by mutual consent. In these circumstances the court below has rightly allowed the application of the opposite party no.2 and it will be a futile exercise to send back the matter to the court below for decision a fresh after giving opportunity to the parties.
(3.) HAVING analysed the submissions advanced by learned counsel for the parties, this Court found that so far the factum of marriage is concerned, it has not been denied by the revisionist. A bald perusal of the record depicts that the opposite party no.2 is the legally wedded wife of the revisionist. The revisionist and his family members were not satisfied with the dowry given at the time of marriage. They were pressing her to fetch more dowry and cash which could not be fulfilled by her parents hence she was subjected to humiliation and harassment and had to bear the brunt of husband and the family members of the matrimonial house. Under the pressing circumstances she moved application for lodging the first information report before the Senior Superintendent of Police on which first information report was lodged and the revisionist was released on bail. The opposite party no.2 was subjected to physical and mental harassment by the revisionist on account of non-fulfilment of dowry. In such situation, she had to leave the house of the in-laws and had to live with her parents. Her parents have also not sufficient means to provide her maintenance. She is a household lady.The maintenance allowance granted by the court below was also not paid to her. It is very surprising as to how the compromise will arrive at between the revisionist and the opposite party no.2 when the matter has travelled from all corners and no efforts were made by the revisionist to harmonise his relation with opposite party no.2. Despite this bald allegations of illicit relation with her own uncle would leave no way for harmonisation. It is evident from the channel of facts and circumstances that the revisionist is not interested to whisk away his matrimonial bickering rather he is interested to dilate the matter on either pretext. The opposite party no.2 being legally wedded wife of the revisionist is entitled for maintenance.From the record it reveals that only Rs. 10, 000/- has been paid to her pursuant to the order dated 26.4.2005. The revisionist also tried to dilate the matter by moving the application for transfer of the case with the oblique motive of languishing the matter years together for depriving the opposite party no.2 to get any maintenance. Even now no maintenance is being paid to her. She is passing through a very miserable and deplorable life on account of lack of proper means for survival.;